India capitulates on key accord at WIPO

As an international accord that has been in the works for a quarter century, the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge agreed upon on May 24 is being hailed as groundbreaking. WIPO or the World Intellectual Property Organization, a UN agency with 193 members, described the treaty as historic. Perhaps it is.

For one, the agreement was finally reached in the face of opposition over decades from the usual suspects—the US, Europe and Japan and the powerful lobbies of industry groups affected by the demand, which was first put forth by Colombia in 1999. In that proposal, the Colombian delegation had asked WIPO to include in the Patent Law Treaty (PLT), which was then under discussion, far-reaching provisions linking patent applications with guarantees protecting a country’s biological and genetic resources. The nub of the Colombian proposal was to ensure that the grant of patents or registrations related to such resources were legally acquired. To this end, Colombia suggested that every document should specify the registration number of the contract allowing access to genetic resources that have been used in the manufacture or development of products for which patents are being sought. Although the proposal was supported by several developing countries, it found no mention in PLT, signed in 2000, because it was opposed by the US and its allies.

There was opposition from powerful lobby groups such as the American Intellectual Property Law Association (AIPLA), Intellectual Property Owners Association (IPO), International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) and so on. The heft of these organisations is palpable. IPO, for instance, is a big tent of diverse corporate interests from law firms, service providers and individuals in all industries and fields of technology that own intellectual property rights (IPR). Over 450 organisations in 30 countries are its members.

Subsequently, WIPO set up the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and consultations over the years have meandered on how patent law could prevent misappropriation of genetic resources and traditional knowledge and promote benefit-sharing. That is why there were emotional scenes at the conclusion of the treaty, with representatives of the First Nation People viewing it as a singular victory. 

Against this backdrop, the WIPO treaty could be seen as groundbreaking, as its chief Daren Tang claims, because it is the first time that genetic resources will be brought under the cover of IPR, and because it is the first WIPO treaty to recognise the rights of indigenous peoples and those of local communities in its provisions. “Through this we are showing that the IP system can continue to incentivise innovation while evolving in a more inclusive way, responding to the needs of all countries and their communities,” said Tang.

Giving a clue to the nature of the treaty is the statement of the President of the Diplomatic Conference, Guilherme de Aguiar Patriota, who said it was “a very carefully balanced outcome” that “constitutes the best possible compromise and a carefully calibrated solution, which seeks to bridge and to balance a variety of interests, some very passionately held and assiduously expressed and defended over the course of decades.” Thus, we have a treaty where enforcement of the key provisions or penalisation is not spelt out. In fact, there is nothing mandatory. The heart of the treaty is Article 3, which is the disclosure requirement. And the problems became clear immediately.

It says those claiming patents on inventions based on genetic resources or associated traditional knowledge have to make the following disclosures: If it is based on genetic resources, those applying for IPRs must disclose the country of origin. If the patent claim is based on associated traditional knowledge, they have to disclose the indigenous people or local community from which it was sourced. And herein lies the futility of the treaty: in both cases, if the sources are not available or known to the applicant, there is no problem at all. The applicant can give any source from where they have obtained the relevant resource or knowledge. All that is required is for the applicant to make a declaration to that effect, affirming that the content of the declaration is true and correct to the best of the applicant’s knowledge.

To clarify: the source of genetic resources refers to research centres, gene banks, indigenous peoples and local communities, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), or any other ex situ collection or depository of genetic resources. The source of traditional knowledge associated with genetic resources means any source such as scientific literature, publicly accessible databases, patent applications and patent publications.

To compound the problem, there is no provision for penalties for non-disclosure. In fact, every effort appears to have been made to accommodate the concerns of those seeking patents. In case the information provided by applicants is incorrect, the State shall have to provide guidance to the applicants on how to meet this requirement and also afford them a chance to rectify the erroneous disclosure. The flexibilities do not end there. The State cannot revoke patents if the disclosure obligation is not met, except in cases where the information was withheld due to fraudulent intentions. Even in such cases, the treaty leaves it to the State to decide on the sanctions to be imposed. For countries like India, there is a problem: our patent law already mandates imposition of sanctions for non-disclosure. One such provision allows a pre-grant opposition to a patent application for non-disclosure of the source of origin, and even a patent that has been granted can be revoked on the same grounds. If such provisions cannot be enforced in India under the WIPO treaty, where does it leave us?

Yet, India is claiming the treaty as a victory of its making. A Press Trust of India (PTI) report quoted an unnamed official as saying, “The treaty also marks a big win for India and the global south which has for long been a proponent of this instrument.” Experts warn that India may have to dilute some of its vital safeguards in the law that prevents wrong patenting. The winners, clearly, are not those who have struggled for decades to get such a treaty. The other side has much more to celebrate.